Social scientists have shown that there is little correlation between the statements Justices give at their confirmation hearings and their rulings once confirmed to the bench. The findings are detailed in the article "An Empirical Analysis Of The Confirmation Hearings Of The Justices Of The Rehnquist Natural Court," which found that confirmation statements and actual rulings simply aren't related. Promises made to Senators evaporate once the Justices reach the bench.
The study considered the Rehnquist Natural Court, the halcyon period from 1994-2005 during which the same nine Justices sat together. Justices from that period were appointed by 5 Presidents over 23 years. The authors examined the Justice's rulings in four areas: originalism, stare decisis, legislative history, and the rights of criminal defendants.
Supreme Court nominees are notoriously coy, making it especially difficult to evaluate their confirmation statements.
For example, Sandra Day O’Connor refused to state how she “might vote on a particular issue which may come up before the Court,” and additionally declined to “endorse or criticize specific Suprem[e] Court decisions presenting issues which may well come before the Court again.” Ruth Bader Ginsburg said, “[a] judge sworn to decide impartially can offer no forecast, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.” Antonin Scalia even resisted questions about whether Marbury v. Madison represents a settled principle of law.The authors concluded that the confirmation process, as currently constituted, is crippled by an over-reliance on discerning a nominee's "judicial philosophy."
These findings are interesting, insofar as they offer little support for the common senatorial practice (or desire) of trying to predict judicial behavior by asking questions about judicial philosophy or interpretive methodology.If we were nominated to the bench, our judicial philosophy would consist wholly of ensuring our confirmation. The study's authors suggest that Senators "should perhaps focus their questions on specific issue areas rather than ‘big picture’ issues involving interpretative methods," while keeping in mind that what is past is prologue. Judge's who rule a certain way before their nomination are unlikely to change their positions on account of a job interview.
This variation may support a recommendation that Senators wanting real information should focus on issue areas rather than interpretive methods: questions about interpretive methods (or interpretive methods themselves) may be so malleable that very little meaningful information will be conveyed in response to such questions.
How to Judge a Would-Be Justice [NYT]
An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court [SSRN]
RELATED: The “Science” of Judicial Selection [Alliance For Justice]